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Miller v. Treadwell

Supreme Court of Alaska

December 22, 2010

Joe MILLER, Appellant,
v.
Mead TREADWELL, in his official capacity as Lieutenant Governor, State of Alaska, Division of Elections, and Lisa Murkowski, Appellees. Lisa Murkowski, Cross-Appellant,
v.
Joe Miller, Mead Treadwell, in his official capacity as Lieutenant Governor, State of Alaska, Division of Elections, Cross-Appellees.

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Thomas V. Van Flein, Clapp, Peterson, Van Flein, Tiemessen & Thorsness, LLC, Anchorage, and Michael T. Morley, pro hac vice, Washington, D.C., for Appellant and Cross-Appellee Miller.

Joanne M. Grace and Laura F. Fox, Assistant Attorneys General, Anchorage, and Richard A. Svobodny, Acting Attorney General, Juneau, for Appellees and Cross-Appellees Treadwell and State of Alaska, Division of Elections.

Timothy A. McKeever and Scott M. Kendall, Holmes Weddle & Barcott, Anchorage, for Appellee and Cross-Appellant Murkowski.

Thomas P. Amodio, Reeves & Amodio, LLC, Anchorage, for Amicus Curiae Alaska Federation of Natives.

Before: CARPENETI, Chief Justice, FABE, WINFREE, and CHRISTEN, Justices.

OPINION

PER CURIAM.

I. Introduction

This case presents several issues of constitutional and statutory interpretation that arise from the count of votes following the 2010 election for one of Alaska's two seats in the United States Senate. Two of the contestants for that seat-Joe Miller, the Republican nominee, and Senator Lisa Murkowski, running as a write-in candidate-are parties to the lawsuit. Without seeking a recount, Miller filed suit in superior court challenging several decisions of the Alaska Division of Elections in counting the votes. Murkowski intervened, challenging other vote-counting decisions of the Division. Superior Court Judge William B. Carey upheld the Division's actions. Miller appeals, and Murkowski cross-appeals.

II. Longstanding Alaska Election Principles

In resolving the questions presented by the parties, we are governed by a number of longstanding principles that we have consistently applied to election issues in Alaska over the past 50 years.

We start with the bedrock principle that " [t]he right of the citizen[s] to cast [their] ballot[s] and thus participate in the selection of those who control [their] government is one of the fundamental prerogatives of citizenship." [1] The right to vote " is fundamental

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to our concept of democratic government." [2] " [It] encompasses the [voter's] right to express [the voter's] opinion and is a way to declare [the voter's] full membership in the political community." [3] We articulated this principle over three decades ago in Carr v. Thomas, recognizing the profound importance of citizens' rights to select their leaders and noting that " [c]ourts are reluctant to permit a wholesale disfranchisement of qualified electors through no fault of their own." [4] In reviewing and interpreting election statutes, we have uniformly held that " [w]here any reasonable construction of [a] statute can be found which will avoid such a result, the courts should and will favor it." [5] We have applied this principle throughout the years because we recognize that the right to vote is key to participatory democracy. Guided by this polar principle, we declared in Edgmon v. State, Office of the Lieutenant Governor, Division of Elections that " the voter shall not be disenfranchised because of mere mistake, but [the voter's] intention shall prevail." [6] Most recently, in State, Division of Elections v. Alaska Democratic Party, we noted that " [w]e have consistently emphasized the importance of voter intent because the opportunity to freely cast [one's] ballot is fundamental." [7]

It is in light of our consistent application of these cardinal principles that we examine the issues presented in this case.

III. Voter Intent Is Paramount, And Any Misspelling, Abbreviation, Or Other Minor Variation In The Form Of The Candidate's Name On A Write-In Ballot Does Not Invalidate A Ballot So Long As The Intention Of The Voter Can Be Ascertained.

Joe Miller seeks an interpretation of election statute AS 15.15.360 that would disqualify any write-in votes that misspell the candidate's name. We do not interpret the statute to require perfection in the manner that the candidate's name is written on the ballot. Our prior decisions clearly hold that a voter's intention is paramount.[8] In light of our strong and consistently applied policy of construing statutes in order to effectuate voter intent, we hold that abbreviations, misspellings, or other minor variations in the form of the name of a candidate will be disregarded in determining the validity of the ballot, so long as the intention of the voter can be ascertained.

Miller points to language in AS 15.15.360(a)(11) providing that " [a] vote for a write-in candidate ... shall be counted if the oval is filled in for that candidate and if the name, as it appears on the write-in declaration of candidacy, of the candidate or the last name of the candidate is written in the space provided." He argues that this subsection, read in the context of other provisions of the statute, requires that a write-in candidate's name be written and spelled perfectly, even if the voter's intent to vote for a particular candidate can be readily ascertained. But when read as a whole, AS 15.15.360's purpose is inclusive, not exclusive; it is designed to ensure that ballots are counted, not excluded. And this inclusiveness is consistent with the overarching purpose of an election: " to ascertain the public will." [9]

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Miller urges that only his interpretation of the statute will " preserv[e] the integrity of the electoral process as a whole." But it is Miller's interpretation of the statute that would erode the integrity of the election system, because it would result in disenfranchisement of some voters and ultimately rejection of election results that constitute the will of the people. We have consistently construed election statutes in favor of voter enfranchisement.

Turning to the language of subsection (a)(11), it is evident that it does not require exact spelling. We agree with the State that subsection (a)(11) concerns pseudonyms. The " nickname" field on the declaration of candidacy form supports this interpretation. If that field were not present, a candidate with a pseudonym might write only his or her legal name on the form, thus invalidating ballots with the candidate's pseudonym written in.[10] The " nickname" field allows a candidate to ensure that his or her pseudonym " appears on the write-in declaration of candidacy" [11] so that the write-in votes listing that pseudonym will count. Thus, the word " appears" relates to a pseudonym's possible presence on the ballot, not the particular form of the vote, and demonstrates that the statute is inclusive-it is designed to include, rather than exclude, votes.

As we have recognized, " a true democracy must seek to make each citizen's vote as meaningful as every other vote to ensure the equality of all people under the law." [12] In order to ensure that each citizen's vote is as meaningful as every other vote, we must interpret the election statute to preserve a voter's clear choice rather than to disenfranchise that voter. The State characterizes the standard urged by Miller as the " perfection standard," and we agree that such a standard would tend to disenfranchise many Alaskans on the basis of " technical errors." [13]

Alaskan voters arrive at their polling places with a vast array of backgrounds and capabilities. Some Alaskans were not raised with English as their first language. Some Alaskans who speak English do not write it as well. Some Alaskans have physical or learning disabilities that hinder their ability to write clearly or spell correctly. Yet none of these issues should take away a voter's right to decide which candidate to elect to govern. We must construe the statute's language in light of the purpose of preserving a voter's choice rather than ignoring it. As we have consistently ruled, we remain " reluctant to permit a wholesale disfranchisement of qualified electors through no fault of their own, and ‘ [w]here any reasonable construction of the statute can be found which will avoid such a result, [we] should and will favor it.’ " [14]

Our interpretation of AS 15.15.360 permitting abbreviations, misspellings, or other minor variations in the form of the name of a write-in candidate so long as the intention of the voter can be ascertained is also consistent with the federally mandated standard for counting the write-in votes of those voters living or serving in uniform overseas. The Uniformed and Overseas Citizens Absentee Voting Act provides that in counting the ballot of a uniformed services voter or other voter who is overseas, " [a]ny abbreviation, misspelling, or other minor variation in the form of the name of a candidate or a

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political party shall be disregarded in determining the validity of the ballot, if the intention of the voter can be ascertained." [15] The Alaska Administrative Code incorporates this requirement into state law. [16] Miller's proposed construction of the statute would require us to impose a different, and more rigorous, voting standard on domestic Alaskans than on those who are serving in the military or living abroad. Our construction of AS 15.15.360 treats overseas and domestic Alaskan voters equally, ensures that each write-in vote is treated equally and counted in the same manner, and avoids valuing one person's vote over that of another. [17]

Finally, Miller suggests that our interpretation of AS 15.15.360 will lead to elections being decided by the unbridled discretion of election officials in determining voters' intent through visual inspection of write-in ballots. But Miller concedes that other states use the same standard for counting write-in ballots and that Congress has mandated that standard. We see no basis for Miller to argue that the application of the standard in this election violates equal protection under either the state or federal constitution. First, only one person, the Division's Director, made the initial determinations whether write-in ballots demonstrated voter intent for a particular candidate; this avoids any constitutional infirmities that might arise from different reviewers applying the standard ...


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